Giles v. Austin — 38 N.Y. Super. Ct. 215

Majority

p. 215

GILBERT GILES, Plaintiff and Respondent, v. WILLIAM AUSTIN, Defendant and Appellant.

Before Monell, Oh. J., and Sedgwick and Speir, JJ.

Decided December 9, 1874.

Headnote

Equitable relief is limited, in cases of penalties and forfeitures, to such cases as admit of compensation, according to the original intent of the parties.

In a case where the penalty or forfeiture is designed to secure the payment of a certain sum of money, equity will afford relief on payment of the money secured, with interest.

In the case at bar, the principal end to be attained was the payment of rent and the taxes and assessments laid upon the estate in question; and the clause of re-eniA'y by the landlord is the security for the payment of money; and precise compensation can be made for its breach; and it follows, that this is a forfeiture for the nonpayment of money, which is a proper subject for the consideration of a court of equity; and such forfeiture is rebievable in equity.

Held, that the plaintiff is entitled to such relief.

The cases of Rector, &c. of Trinity Church ®. Higgins, 48 N. T. 532; Garner t>. Hannah, 6 Duer, 262 ; Morell v. Garelly, 16 Abb. 269 ; Atkins ®. Chilson, 11 Mete. 112; Tibbs ®. Morris, 44 Barb. 138 , reviewed also.

The opinions of the several judges of the general term in this case on former hearings. See Giles ®. Austin, 34 Super. Ot. 171 (2 Jones & S.), same case and vol., p. 540.

Appeal from a judgment.

This case was decided upon the opinion of the learned judge at the special term, before whom the same was tried, and the judgment affirmed.

The decision and findings of fact and law by the

p. 216

judge of the special term sufficiently illustrate the facts and points.

1. By indenture of lease, bearing date April 9, 1859, and delivered on or about that day, the defendant, William Austin, leased to the plaintiff, Gilbert Giles, the premises, in the city of New York belonging to said Austin, known by the street-number thirty Reade-street, with the lot in the rear thereof, fronting upon Manhattan-alley, more particularly described in the complaint, for the term of twenty-one years, from May 1, 1859, at the annual rent of twenty-eight hundred dollars, payable in equal quarterly payments, on the first days of August, November, February and May; and by said indenture the said Giles, the lessee, covenanted to pay duly the said rent, and likewise to pay all taxes and assessments, as they became due and payable, which during the said term might be assessed or imposed upon the said demised premises; and by said indenture it was provided and agreed that in case the said rent should at any time be in arrear or unpaid, or if default should be made in any of the covenants on the part of the lessee, in the said indenture contained, the lessor, his heirs or assigns, should have the right to re-enter upon the demised premises, and hold the same as in his or their first and former estate.

The said indenture of lease further provided that all taxes or assessments which had been theretofore imposed or confirmed in any way upon said demised premises were to be paid by said Austin, the lessor; and it also provided that the said Giles, the lessee, was to have the use and enjoyment of the materials of the buildings, then on said demised premises, in and about the erection of new buildings.

The said Giles entered into possession of the premises, under the said lease, at or about the commencement of the term. The buildings upon the same at this

p. 217

time consisted of an old one of brick, fronting upon Reade-street, two and a half or three stories high, and before the lease to Giles used as a hotel and restaurant, and one upon Manhattan-alley, formerly a stable, but converted into lodging-rooms for the restaurant and hotel—The premises having formerly rented for such purposes for two thousand four hundred dollars per annum. The front of the building on Reade-street was obliged to be torn away to the extent of twenty feet, in consequence of the widening of Reade-street. The said Giles at once proceeded to tear down the old buildings, and erected in their place a new and substantial building, covering nearly the entire premises, suitable for use for business purposes, six stories high, with marble front, costing at that time about thirty thousand dollars, and to build which at the present time would cost about fifty-five thousand dollars, and which is now worth about forty-five thousand dollars.

The old buildings, if left standing, might have been worth from twelve to fifteen thousand dollars, and the materials in them, when used in the new, be worth about three thousand dollars.

At the time of the making of the said lease there were outstanding and unpaid two assessments which had been imposed upon the demised premises, which the said Austin disputed, viz: one for three thousand nine hundred and ninety-five dollars, imposed on March 12, 1859, by the order of the supreme court, in the proceedings for the widening of Reade-street, on the east side of Broadway, and one for nine hundred dollars, imposed on March 26, 1859, by the order of the supreme court, in the proceedings for the widening of Reade-street, on the west side of Broadway.

The defendant opposed the confirmation of these assessments, and then and afterwards claimed they were irregular and void, or at least that they should be apportioned. He applied to the comptroller of the

p. 218

city of New York for an apportionment of the same, which was refused. He twice tendered to the comptroller the amount he considered equitably due on these assessments, which was refused by the comptroller, who assigned as a reason the absence of an order or judgment of the court directing him to make the apportionment. Afterwards, the said Austin commenced a suit against the corporation of the city of New York, to have the said assessments declared void, or requiring the same to be apportioned, and in 1863 be obtained a judgment that they be apportioned, and the said Austin thereupon applied to the comptroller of the city to have the said assessments apportioned, he delivering to the clerk of arrears, in the comptroller’s office, a copy of the judgment, and expressing his readiness and offering to pay the amounts due, but nothing was done by the comptroller under this, nor were the assessments paid; and afterwards, at the sale made by the corporation of property for unpaid assessments on September 19, 1871, the said demised premises were sold to James Lynch, for the term of eighteen years, for the said assessment for widening Readestreet, on the east side of Broadway, amounting then, with interest and charges, to ten thousand and one dollars and eighty-two cents, and were likewise sold to Wesley Smith, for the term of forty years, for the said assessment for widening Reade-street, on the west side of Broadway, amounting then, with interest and charges, to twenty-two hundred and sixty-one dollars and ninety cents. The said William Austin, on or about J une 12,1872, procured one Gouverneur Tillotson, as attorney for and on behalf of Mrs. Swartwout, mortgagee of the fee simple of the said demised premises, under a mortgage thereof executed by said William Austin, to purchase and take an assignment to him, said Tillotson, of the certificates of the said two assessment sales, with the rights acquired by the pur

p. 219

chaser thereunder; and such assessment sale certificates, with the rights of the purchasers thereunder, were held by the said Tillotson at the time of the trial of this action ; and the said William Austin upon the trial tendered to the said Gilbert Giles a deed executed by himself and Gouverneur Tillotson, by which he released and discharged all the right, title and interest in and to said premises of the said Giles, under the lease made to him by said William Austin, and all the right, title and interest in and to the premises, of all persons holding or to hold under said Giles, of and from all claim or title or causes of action or damages, for or by reason of any title under the aforesaid assessment sales had by said Gouverneur Tillotson.

3. The said Giles paid to said Austin all the rent which from time to time accrued under said lease, up to and including the quarter’s rent falling due on November 1, 1867, such payments being usually made in about one, two or three days after the quarter’s rent, respectively, fell due, such payments after the passage of the legal-tender act being made in legal-tender notes, and such payments when made, respectively, were accepted by the said Austin.

4. On or about November 6, 1867, after receipt of the quarter’s rent which fell due on the first day of that month, the said Austin for the first time learned that certain taxes and assessments upon the demised premises, which by the terms of the lease were payable by the said Giles, the lessee, and which are hereinafter more particularly mentioned, were in arrear and unpaid, and he thereupon, at or about that date, notified said Giles of the fact of there being taxes and assessments in arrear, and required him to pay the same, at the same time informing him that their existence was interfering with the consummation of a mortgage loan for twenty thousand dollars upon said premises, which said

p. 220

Austin had arranged for and was about to obtain, and these notifications and requests were repeated by said Austin to said Giles once or more before the commencement of the ejectment suit hereinafter mentioned, and on some occasion during this period, and about December 1, 1867, said Austin said to said Giles that he would bring an action of ejectment against him if he did not pay up such taxes and assessments.

Up to the time of receiving such first notification from said Austin, said Giles did not know that the said taxes and assessments were in arrear; he had trusted to his book-keeper to attend to the payment of the same, and supposed they had been attended to. Upon being informed by said Austin that such taxes and assessments remained unpaid, he did not refuse to pay the same, nor deny his liability therefor ; he claimed that they were paid, but promised said Austin that he would have the matter looked into, examine his receipts, and, if he found there were taxes or assessments to be paid by him, that he would pay them. Said Giles accordingly employed Mr. H. Simms as his attorney, to investigate the matter, and learned, as the result, that there were such taxes and assessments in arrear, and upon subsequently seeing said Austin, said Giles promised him that he would pay such taxes and assessments, but he delayed and neglected doing so: but such delay and neglect did not proceed from any unwillingness or determination on the part of said Giles not to pay, and in so neglecting he did not suppose that he was thereby doing any injury or injustice to said Austin, or that any serious consequence of any kind could arise from it, but thought that the only consequence would be the loss of the extra interest charged by the corporation, and that as such loss would fall upon himself, it would be no injustice to said Austin. On December 10, 1867, said Austin commenced an action of ejectment in this court against said Giles and against Barlow Stevens and

p. 221

others, who were, respectively, under-tenants of portions of the premises, for recovery of the possession of said premises, upon the ground of forfeiture of the lease by such breach of the covenant to pay taxes and assessments.

Said Giles employed said H. Simms as his attorney in the said ejectment suit, and said Simms advised him not to be in any haste to pay up the taxes and assessments, because of the fact that said Austin was himself largely in arrear, and for a long time, upon the said assessments, on the demised premises, which were payable by him.

After the commencement of the ejectment suit, said Giles, from time to time, paid up portions of the said taxes and assessments in arrear, and by the advice of said Simms an answer was put in, in the said ejectment suit, setting up, among other matters, by way of defense, the said default of the lessor in not paying the said assessments chargeable upon him.

In September, 1866, said Giles employed Evarts, Southmayd & Choate as his attorneys, to take charge of his interests which were involved in said ejectment suit. They at once advised him that the proper course for him to pursue was to pay up at once all the taxes and assessments on said premises which were payable by him, and thereupon to apply to the lessor to waive the forfeiture which had been incurred as aforesaid, and offer to pay the rent in arrear, with interest upon it and all costs in the ejectment suit, and in case the lessor refused so to waive the forfeiture, to apply to the court to grant relief against the same. The said Giles at once acquiesced in this advice of his said new attorneys, and agreed to follow it, and thereafter did so, furnishing the necessary money for the payments as called for, and doing whatever else he was directed to do in pursuance of the advice aforesaid, and he left it entirely to his said attorneys to select and adopt such means and form of

p. 222

applying to the court for relief against said forfeiture as they should deem fit, without himself expressing any views or preferences upon that subject.

Accordingly said attorneys undertook to pay for said Giles, he furnishing the money therefor, and supposed they had so paid, prior to the institution of this suit, all the taxes and assess m ents• upon said premises, except the said two old assessments which were payable by said Austin, and, in fact, they did so pay for said Giles all said taxes and assessments payable by him, except only that there appear on the tax books of the corporation of the city of New York unpaid taxes for the years 1865, 1866, 1867 and 1868, upon a small portion of the said demised premises, fronting upon Manhattan-alley, and being part of the' old stable lot, which portion of said premises, upon which said taxes appear unpaid, is a lot designated upon the ward-map, by which taxes are assessed, as lot No. 1162; while the main lot, fronting on Reade- street and extending through to Manhattan-alley, and embracing a part of the front upon that alley, is laid down and designated, upon said ward-map, as lot No. 1169. In the years 1865, 1866, 1867, and 1868, there being then a single building covering both lots,—Nos. 1169 and 1162,—the said two lots,—Nos. 1162 and 1169,—were, as appears by the assessors’ book, marked assessed and taxed together, at an aggregate valuation of such two lots.

But notwithstanding this, lot No. 1162 is, on another page of the book, assessed and taxed separately, at a separate valuation, the amounts of such separate tax charged against lot No. 1162, in the said respective years, being one hundred and four dollars and sixty-five cents in 1865, eighty dollars and fifty cents in 1866, ninety-three dollars and forty-five cents in 1867, and ninety-three dollars and ten cents in 1868 ; while, in the same years, the amounts of tax charged against the said lots Nos. 1162 and 1169, taken together at an aggregate

p. 223

valuation, are as follows, viz.: in 1865, one thousand and forty-six dollars and fifty cents; in 1866, eight hundred and seventy-four dollars ; in 1867, one thousand two hundred and one dollars and fifty cents; and in 1868, one thousand three hundred and thirty dollars.

The said amounts of tax thus assessed in these four years against lot No. 1162, separately, appear to be so assessed in error, and to be cases of duplicate taxation.

In clearing off the arrears of taxes and assessments, just before the commencement of this suit, the said Evarts, Southmayd & Choate did not pay such taxes of 1855-’6-’7 and ’8 upon lot No. 1162, separately, because they had not, nor had said Giles, any knowledge of the existence of such separate and duplicate taxes. The same did not appear upon the tax search, because the searcher, upon finding the lot 1162 taxed once in ■connection with lot No. 1169, looked no further.

The taxes and assessments payable by said Giles, which were in arrear at the time of the commencement of said ejectment suit, or previously, and the time of the payment thereof by said Giles, were as follows, viz. : Taxes of 1861 and 1862, on lot No. 1162, on Manhattan-alley, assessed separately. There had been a ■corporation sale of this lot on October 30,1866, for nonpayment of taxes of 1861 and 1862, amounting, with interest to time of sale, and charges, to two hundred and six dollars and twenty-one cents. This sale was redeemable for two years and a half, and on January 14, 1803, said Giles redeemed the premises therefrom, by payment of two hundred and forty-two dollars and thirty cents, which included the interest subsequent to sale.

Taxes of 1863, on lot No. 1162 on Manhattan-alley, assessed separately, amounting to seventy-one dollars and twenty-two cents, were paid November 13, 1867.

The other taxes of 1861, 1862, and 1863, were paid in October, 1864.

p. 224

The taxes of 1864, on lot 1162, were paid February 14, 1868; the other taxes for 1864 do not appear to-have been in arrear.

The tax of 1865, assessed against the two lots on an aggregate valuation, was paid May 3, 1866.

The tax of 1865, assessed against lot 1162, separately, came to the knowledge of Evarts, Southmayd & Choate a few days after the commencement of this suit; and, upon finding the tax bill, they supposed it had been by some mistake omitted in the previous payments, and, without any particular scrutiny of it, sent at once and paid it on October 27, 1868.

The taxes of 1866 and 1867, assessed against the two-lots at an aggregate valuation, were paid July 30, 1868;

The tax of 1868, assessed against the lots at an aggregate valuation, was paid October 29, 1868, before-it fell due.

There was an assessment, on the demised premises,, for opening Chambers-street to James-slip, confirmed August 18, 1860, of forty dollars, paid February 14, 1868, amounting, then, with interest, to seventy-five-dollars and ninety-five cents, and an assessment for Church-street extension, confirmed December 30, 1867,. paid. October 10, 1868.

The fact of the existence of the said duplicate tax on lot 1162, for the years 1866,"-’7, and ’8, was not discovered by said Giles, or his attorneys, until the time when this case was on its first trial before Judge Mitchell as referee.

Upon that trial he adjudged that said duplicate taxes, for those years, were wholly null and void.

They stood, however, on the tax books, and the efforts made to induce the city officers to cancel the-, same were not successful, and in the corporation sale for unpaid taxes, made December 14, 1871, they included this lot, No. 1162, and sold the same to James-Lynch, for one hundred years, for the amount of such-

p. 225

duplicated taxes for the years 1866, 1867, and 1868, amounting, with interest to the time of sale, and charges, to four hundred and four dollars and ninety-three cents, and issued to said Lynch the usual certificate of such assessment sale, redeemable for two years- and a half.

On October 12, 1868, after payment of all the said taxes and assessments payable by said Giles, other than the duplicate taxes on the lot on Manhattan-alley, the said Giles delivered to said Austin a notice in writing, in the words following, to wit:

“New York, October 12, 1868.

“To Mr. William Austin :

“ Sir: I have paid all the taxes and assessments dun or payable, up to this date, on the property in Readestreet and Manhattan-alley, leased by you to me by indenture of lease dated April 9, 1859, and I apply to you to waive any technical forfeiture of the lease which may have occurred by my not having- paid the same-punctually, and I tender and offer to pay to you all the rent in arrear, on said demised premises, with interest" on the same from the time it became payable, and also your costs in the ejectment suit prosecuted by you for recovery of possession of said premises, and also to pay the costs of all the defendants in said ejectment suit.

“Yours, &c.,

“G. Giles.”

And the said Giles was then and there ready and willing to pay the rent in arrear, and interest and costs, as specified in such notice.. No acceptance of Giles’ proposition having been received, on or about October 15, 1868, the said Giles commenced this action, and obtained therein an order to show cause why an injunction should not be granted restraining the prosecution, by said Austin, of the said ejectment suit,' with a temporary injunction, meanwhile, restraining the same.

Upon this order to show cause, the said Austin gave

p. 226

a consent to the making of such injunction-order to continue until the trial of this action, and. the same was made accordingly.

The course thus adopted by said Giles, of seeking relief against the forfeiture by independent suit in equity, instead of applying for leave to file a supplemental answer in the ejectment suit, setting up the discharge of the taxes and assessments, and therein praying relief against the forfeiture, or making a special motion in the ejectment suit, before or after judgment for relief agaiust the forfeiture, by perpetual stay of proceedings or otherwise, was adopted by said Giles in good faith, under and in reliance upon the advice of his then attorneys and counsel before mentioned, that such was the proper course for him to pursue, and not with any purpose or intent, on said Giles’ part, to prejudice or delay said Austin by the selection of that course of procedure, and the said attorneys and counsel advised and pursued such course of an independent suit in equity, in the like good faith, without any design of thereby prejudicing or delaying said Austin in any of his supposed legal or equitable rights; and said attorneys and counsel, in deciding to take that course, were, to a great extent, governed by the considerations that they considered it to be the settled law of this court, by adjudication at general term, in the case of Garner u. Hannah ( 6 Duer, 262 ), that such relief could not be obtained by supplemental answer in the ejectment suit. lu so taking the course of an independent suit, the said attorneys and counsel had not, nor had said Giles, any reference to any question of costs, as against said Austin, and almost immediately after the bringing of this suit, the said attorneys and counsel on behalf of said Giles, offered to said Austin, if he would consent to waive the forfeiture, to adjust and pay.his costs and allowance in the ejectment suit, and in this suit act liberally toward him, and urgently en

p. 227

deavored to persuade him to do so; and repeatedly, during the progress of this suit, the said attorneys and counsel, on behalf of said Giles, have repeated said offers to said Austin, and renewed such attempts at persuasion, but the said Austin did not accept the offers and terms proposed.

The said Giles is seventy years of age, and is and was at the time of the said Austin’s demands made upon him in November, 1867, and at all times after-wards, of slender capacity for business, and with his faculties enfeebled by age," although by no means imbecile or legally incompetent for the transaction of business. His suffering such taxes and assessments to get in arrear had arisen from his having trusted to his book-keeper, as before mentioned, and it being much his habit .to rely upon others, and such delays •and neglects or breaches of legal duty or obligation in respect of paying the said taxes and assessments, and performing his covenants in. that regard, as said Giles was guilty of intermediate the demand first made upon him by said Austin in November, 1867, and the commencement of this action, are attributable to his said weakness and lack of business capacity, his reliance upon others, and the injudicious advice which he received from the attorney whom he at first employed, and not to willful misconduct or intended wrong.

The said Austin made such arrangements in respect of the before-mentioned mortgage loan which he had arranged for in March, 1867, as that he obtained the same after a short delay, giving security to the mortgagee against outstanding taxes and assessments, and said Austin did not sustain any actual pecuniary damage of any consequence by reason of said Giles’s default and delays in respect of his said covenant for the payment of taxes and assessments, further than a loss of fifty dollars in payment of interest on the mort

p. 228

gage loan, and such as are incident to the litigations in. the ejectment suit and this action.

On every quarter-day subsequent to November lr 2867, until February, 1873, or within a few days after such quarter-day, the said Giles tendered to said Austin payment of said quarter-rent under the lease aforesaid, and likewise offered payment of all the rent due from November 1, 1867, up to the time of such tender; and the said Austin always refused such, tenders, and would not receive any rent after the-commencement of such ejectment-suit. When he assigned the reasons for such refusal, the same were-usually:

1. That the amount was not sufficient, and that interest should be added.

2. That such note, in which the tender was made,, was not a valid tender in law.

3. That the relation of landlord and tenant had ceased, and that plaintiff was a trespasser.

Upon February 1, 1873, an order was made in this-suit, upon the application of said Austin, that the said injunction in this action be vacated unless the said Giles, within thirty days after service of a copy of said order upon his attorneys, should pay into the New York Life Insurance & Trust Company, to abide the-judgment of the court in this action, or its further order therein, to be made, only upon due notice to both parties, the rent reserved under the lease aforesaid, which had accrued, and not been paid or accepted, but without interest, and the future rent to accrue thereunder, until the further order of the court, be paid in-like manner by said Giles, as the same from time to time should accrue, into said trust company, to be held by it as aforesaid.

Under and in pursuance of said order, the said Giles has paid into the said New York Life Insurance- & Trust Company, to the credit of this action, the

p. 229

sum of fourteen thousand seven hundred dollars, on March 3, 1873, being the amount of the rent accrued ■under said lease subsequent to the quarter’s rent fully due November 1, 1867, up to and including the quarter’s rent falling due February 1, 1873, which sums now remain on deposit in said trust company to the ■credit of this cause, under said order, and the first of such payments was made within the thirty days limited in the order, and said Giles has also, since the •commencement of this action, duly paid the current taxes on said premises, from time to time assessed thereon.

10. The said Giles remains in possession of the de■mised premises by bis under-tenants thereof. Barlow Stevens, one of said under-tenants, and one of the •defendants in said ejectment suit, is indebted to said Giles in the sum of three thousand dollars for two quarters’ rent of said premises, ending February 1, 1873 ; which said Stevens refuses to pay by reason of the pendency of said ejectment suit, and of the claim set up by said Austin, that said Stevens’s possession is wrongful as against him, by reason of the forfeiture of the said lease to Giles.

11. The said Giles has now leased the whole of the demised premises to a single tenant from May 1, 1873, .to the expiration of the term granted by said lease of Austin to Giles, viz:-May 1, 1880, at the annual rent of seven thousand five hundred dollars, payable quarterly, which will leave to said Giles, after payment of the current ground rent to said Austin, and probable ■amount of annual taxes, a surplus of about thirty-two or thirty-three hundred dollars per year. Shortly after the former judgment in this action, upon the report of Hon. William Mitchell, referee, the said Austin offered -to Mr. Southmayd, one of the attorneys of Giles in this action, to waive the forfeiture and what he claimed to be his equitable right, if said Giles would pay fifteen

p. 230

hundred, dollars in addition to the amounts awarded by Judge Mitchell.

Upon the trial of this action, the said Austin stated to the court, in substance, that he had never been and was not now unwilling that the said Giles should be-released from the forfeiture upon which he, said Austin, considered and claimed to be the proper, equitable terms for said relief. The equitable terms claimed by said Austin are the payment of the rent subsequent to November 1, 1867, with interest thereon in gold instead of legal-tender currency, the payment of the-future rent accruing under the lease in gold, and the payment by said Giles to said Austin of an allowance equal to the difference in value at the time being between gold and currency, upon all the quarterly payments of rent made by the said Giles and accepted by said Austin, between the passage of the legal-tender act and November 1, 1867.

The imposition of such terms would impose upon said Giles an extra payment beyond payment in legal-tender currency of the rent reserved by the law nearly equal to the present value of the unexpired term of' the lease, estimating such value according to the rent reserved by the .said sub-lease to the end of the term.

And I thereupon find and decide, as conclusions of law:

First. The said Giles is equitably entitled to be relieved against the technical forfeiture incurred by his non-performance of the covenant to pay the taxes and assessments when they fell due, upon condition oí having paid up subsequently the said taxes and assessments and such as have accrued subsequently thereto,, and of paying the rent now due and unpaid under said lease, with the interest thereon, in the manner and to the extent hereinafter provided, and of paying the costs.

p. 231

of the ejectment suit and the other costs and allowances to said Austin hereinafter mentioned.

Second. This independent suit in equity was properly brought, and is maintainable, for obtaining such relief against the forfeiture. And if there were otherwise any technical objection to the right to maintain such independent suit in equity for relief, instead of application for leave to file a supplemental answer in the ejectment suit, or other summary proceeding in the ejectment suit, such objection to the form of the remedy, under the circumstances under which this action was commenced and has been prosecuted and has been defended, should be allowed to go no further than to affect the question of costs in this suit to the parties respectively, and not to defeat the suit, and render the litigation ineffectual to settle the rights of the parties.

Third. Although it seems to the court that the said duplicated taxation of the lot No. 1162, upon Manhattan-alley for taxes of 1866, 1867 and 1868, was and is illegal and void, and that therefore the said duplicate taxes, and the tax sale made therefor, as aforesaid, create no lien or claim of title, or otherwise, upon or to the premises in question, yet, inasmuch as this can not be in this action conclusively adjudged, as against the city or the county of New York, it is not proper that the said Austin should be subjected to any possible risk in respect thereof. The said plaintiff should pay in full the amount of such taxes and interest, with the costs, charges and expenses of the sale thereunder, and redeem and discharge the land from the effect of such sale as a condition of the relief against the forfeiture ; or he may cause to be executed, and delivered to said Austin, a release from the party owning the certificate of sale to said Austin, his heirs and assigns, of all lien or claim upon or to the said demised premises, or any part thereof, under or by

p. 232

virtue of the said taxes or tax sale, or the certificate thereupon executed, or any assignment thereof with an appropriate reservation, in so far as may be, of the claim against the city for the amount paid by said Lynch upon said tax sale, with interest thereon, by reason of the invalidity of said tax and tax sale, the form of which release, if the parties hereto shall not agree upon it, shall be settled by the justice of this court before whom this trial is had, testified by his approval thereon.

Fourth. The said Austin has no legal or equitable right to the imposition, by way of condition of the relief against the forfeiture, of the said terms by him demanded of payment in gold, instead of currency, of the rent now due, or the interest thereon, or of the future rent, or of an allowance for the difference in value between gold and currency, upon the payment of rents heretofore made and accepted ; nor to impose as such terms the payment of any rent to a greater amount, or in a different currency, from that legally due and payable in virtue of the terms and conditions of the lease.

Fifth. The sum probably payable by or on the part of said Giles, as a condition of the said relief against the forfeiture, for and in respect of the rent accrued under said lease subsequent to November 1,1867, up to the present time, is the amount of such rent paid into court as aforesaid, under the said order of February 1, 1873, and now on deposit in the New York Life Insurance & Trust Company to the credit of this cause, which deposits, with the interest accrued and to accrue thereon from the time of the making thereof, shall be paid over to said Austin, and the further payment by said Giles to be made to said Austin, as hereinafter provided, of interest at the rate of seven per cent, per annum upon the amounts of the respective quarters’ rents which fell due under said, lease, subse

p. 233

quent to November 1, 1867, from the time when they respectively fell due up to the time of the said payments made by said Griles of the amounts thereof into the said the New York Life Insurance & Trust Company.

Sixth. The said Austin, as a condition of receiving the amount of interest above ordered to be paid to him by said Griles, and the amounts of costs, and all allowances hereinafter ordered to be paid to him, should procure, to be executed by said Gí-ouverneur Tillotson, and deliver to said Griles, a release, in proper form, of his leasehold interest in said demised premises from all claim, lien, or title, under or by virtue of the said respective assessments for the widening of Reade-street, on the east and west sides of Broadway respectively, or under or by virtue of the said assessment sales made therefor to said James Lynch and Wesley Smith respectively, or the said certificate executed upon such sale, or said assignment thereof to said Tillotson, with a proper reservation, in so far as may be, of all other rights of the holder of said assessment certificate against any and all other parties, the form of which release, if the parties to this action shall not agree thereupon, shall be settled by the justice before whom this trial was had, testified by his approval indorsed thereon.

Seventh. In case said Austin complies with the foregoing provisions for release of said leasehold interest from the said assessment and assessment title, the said Griles, shall, within twenty days after the doing thereof, pay to said Austin the amount of the interest payable to him in virtue of the fifth finding and conclusion of law, and the amount of the costs and allowances hereinafter provided to be paid by said Griles.

Eighth. The said Griles shall pay to said Austin his costs of the said ejectment suit, including an allowance to said Austin thereon of the sum of two hundred and fifty dollars, and the sum of fifty dollars, with the inter-

p. 234

eat thereon from January 1, 1868, to cover loss of interest sustained by defendant on the mortgage to Mrs. Swartwout, and shall also pay the costs of the other defendants in said ejectment suit, or deliver to said Austin the consent of the defendant’s attorney in such ejectment suit for the discontinuance of that suit without costs, and said Giles shall also pay the said Austin his cost of defense in this suit, to be adjusted, together with an allowance to him therein of the sum of six hundred and fifty dollars in this action.

The payment by said Giles of' the costs and allowances ordered in this finding to be made at the times and in the manner before provided.

Ninth. Upon the condition of the making by said. Giles of the payments hereinbefore adjudged or ordered to be made by him, and of compliance on his part with the terms and conditions hereinbefore imposed upon him, the said Giles shall be by the judgment herein relieved from the technical forfeiture of said lease incurred by him by his breach of the covenant to pay the taxes and assessments thereunder when they became due, and restored to all his rights as lessee as if no such forfeiture had been incurred, and thereupon the said Austin shall be perpetually enjoined from prosecuting the said ejectment suit, or any other ejectment suit, for recovery of possession of said demised premises, or the rents, issues or profits of the same by reason of the said default above decreed to be relieved against, and unless and until said Giles shall make default in making the payments or performing the terms and conditions before imposed upon him, at. the time and in the manner above provided, the now existing injunction against the prosecution of said ejectment suit shall be continued. ■

Opinion of the judge, at the special term, in March, 1873, concurred in, and affirmed by the judges of the

p. 235

general term, Monell, Ch.. J., and Sedgwick and Seeir, JJ.

Equitable relief, in cases of penalties and forfeitures, is limited to such cases as admit of compensation, according to the original intent of the parties.

In cases where the penalty or forfeiture is designed to secure the payment of a certain sum of money, a court of equity will afford relief on payment of the money secured, with interest.

As to the covenants in question contained in the lease, the principal end to be attained was the payment to the landlord of the rent reserved, and the discharge of the estate from the taxes and assessments which might be imposed during the term. The right of reentry reserved to the landlord is the ultimate sanction operating to secure the performance of the tenant’s obligations under the lease. ’

If this was a re-entry sought to be enforced on account of the non-payment of rent to the landlord, there would be no difficulty in determining whether equitable relief could be afforded the tenant, and he be relieved from the forfeiture occasioned by his breach of the covenants in the lease, as compensation could yet be made to the landlord, by ordering the payment to him of the amount, with interest, and by the imposition of such other terms as would be just and equitable.

Although the obligation is in his favor, yet the taxes and assessments, which the tenant failed to meet when due and payable, do not go directly to the landlord, but to the municipal government. The omission to pay them at the time appointed subjects the land, upon which they are lien and burden, to sale, and the landlord’s title to jeopardy.

Yet I can not but conclude that when the taxes are

p. 236

actually paid by the tenant, whether at the time they became due, or subsequently, the real object and intent of the parties, the discharge of the land from the lien, is substantially attained. Especially would this be so, if no steps had been taken, during the period of default, for the sale of the land on account of their non-payment.

The object of the landlord in demanding the covenant from the tenant was to shift from himself, the owner, upon the tenant, who was to occupy the land, these legal burdens. In view of this assumption by the tenant of the payment of taxes and assessments, the amount of rent to be paid by the tenant was doubtless adjusted.

In the case of Rector, &c. of Trinity Church v. Higgins ( 48 N. Y. 532 ), it was held that the covenant of a tenant to pay taxes and assessments is an obligation in favor of the landlord, which the latter might enforce by action, in which he might recover the amount of the taxes and assessments from the tenant, although he had not himself actually paid them.

The Court says:—“The covenant is broken when the defendants neglect to pay taxes and assessments duly imposed. The defendant is not at liberty to say that it is the debt of the plaintiffs. Let them first pay it, and I will pay them. It is his own debt, made so by the terms of his covenant.”

If this be so, and the obligation be a debt created by the tenant, there is no more difficulty in ascertaining the amount of compensation to be paid by the tenant to be relieved from the legal consequences of his default, than if it was the result of a failure promptly to pay his rent.

The amount of taxes and assessments is definitely fixed and limited when imposed, and the.time of their payment unalterably regulated by law, and the amount

p. 237

of interest to be paid in case of delay is also clearly established by authority.

3f the landlord had himself paid these taxes and assessments, the amount he would be entitled to receive, as a condition to the tenant’s relief (if redress was proper), could be accurately measured, and full compensation made him. In the case of Garner v. Hannah ( 6 Duer, 262 ), it was. substantially held, that the clause of re-entry, as applicable to covenants for the payment of rent or taxes, or any other sum certain, is in equity treated as a security for the payment of money, and precise compensation can be made for their breach, and that a forfeiture for the non-payment of which is relievable in equity.

Such obligations possess elements of certainty and fixedness, as to amounts- and time of payment, which generally apply neither to covenant to repair nor insure.

But it is claimed by the defendants that the conduct of the plaintiff has been such as to disentitle him to equitable relief. That his laches can not be excused. That he has been willful in his default, and has exposed the reversion to danger.

These objections can be urged to some extent to all cases of default for non-payment of rent, but as a consequence the tenant must, if he would have equitable relief from a forfeiture, inevitably make compensation in damages.

I am not satisfied that the conduct of the plaintiff has been “willful,” in such sense as to deprive him of equitable consideration and relief.

The plaintiff constitutionally and by habit depended upon others. The person to whom he intrusted the liquidation of these taxes, and to whom he gave the means for this purpose, neglected his duties. For years the plaintiff supposed the taxes and assessments had been paid, and when spoken to by defendant on the subject, said they were paid.

p. 238

There is nothing in the case which tends in the slightest degree to show that he ever denied his obligations under the lease, or that he sought to evade them. And when, in ¡November, 1867, his attention was definitely called to their non-payment, and when, after examination, he found them to be outstanding, he expressed his willingness and his intention to discharge these liens.

Ignorant of the consequences of his default, he supposed the penalty which he would incur was the payment of increased interest. That the loss was on him alone.

He was doubtless lulled into a mistaken feeling of security by the fact, as he was advised, that his landlord had allowed assessments, considerable in amount, to remain as a charge and lien upon the premises for many years, without any apparent danger or hazard to the property.

I could, by no adjudication, give any license or encouragement to the neglect or willful postponement of legal obligations. The law demands that they should be promptly met. But in the case of a person of slender capacity, as the plaintiff is shown to be, who, through ignorance of the consequences of his default in promptly meeting his obligations, the binding force of which he does not willfully dispute, although he negligently postpones, and who blindly relies upon the mistaken advice of others, in whom he was justified in confiding, and when an adequate compensation for the default can be ascertained and made in money, the severe consequences of the default being the forfeiture of a considerable property upon which he is greatly dependent, the benign principles of equity should interfere to shield him from the strictly legal consequences.

I can not think but that the plaintiff should have

p. 239

relief, if it can be made, upon principles which ordinarily apply to cases of this nature.

But it is objected by the defendant, that if the plaintiff is entitled to any relief, he should have sought it in the ejectment suit. That this action is wholly unnecessary, and its commencement, under the circumstances, itself a breach of equity.

Such appears to have been the opinion of the learned chief justice when the case was before this court, at general term, upon the appeal from the judgment entered upon the report of the referee granting the plaintiff relief from the forfeiture upon equitable terms.

In the opinion delivered by the chief justice, he says: “If he is entitled to any relief, he may obtain it by proper answer in the ejectment suit itself;” and he further adds: “Nor was it necessary for him to institute this action for the purpose of setting up the equities acquired by him by reason of the payment of taxes pendente lite. For if these payments operated as an equitable release and discharge of the term from the legal forfeiture which had been incurred, because of the previous failure of the lessee to perform his covenant, they would have constituted a perfect defense to the action of ejectment, if duly set forth in a supplemental answer; and in that case certainly the defendant then would have been entitled, upon a proper motion, to an order permitting him to put in such an answer,” “and that the bringing of this action constitutes such breaches of the rules of equity and good conscience as deprived him of equitable relief in this suit.”

The chief justice, for the reasons assigned by him, was in favor of a reversal of the judgment. Justice Jobes concurred with the chief justice in a reversal of the judgment, and assigned as reasons, that “ The laches and action of the plaintiff has been such as not

p. 240

to entitle him to favorable consideration by a court of equity and he adds : “I am unwilling to make this-case a precedent for granting relief under circumstances of such gross and inexcusable neglect.”

The judgment was accordingly reversed, and the plaintiff’s complaint dismissed.

Justice Monell, who was a member of the court before which the appeal was argued, did not concur in the reversal or dismissal, but was for affirmance.

The complaint having been dismissed without awarding a new trial, at a subsequent general term of the court, upon argument, the order reversing the judgment was so far modified as to award a new trial.

The new trial was granted upon affidavits made by the plaintiff and his counsel, setting forth the facts and circumstances under which this action was brought, showing that the plaintiff, in bringing this action, acted entirely upon the advice of his counsel, in whose opinion the action was necessary, adequately to protect the rights of the plaintiff. That the plaintiff implicitly and confidingly followed the advice, and adopted the course suggested to him by his counsel. It was the opinion of the counsel that the relief from the forfeitures, to which the plaintiff was equitably entitled, could more readily and with greater certainty be inquired into by an affirmative action, in which all the equitable rights of both parties could be ascertained and adjusted, than by motions in the ejectment suit for leave to file a supplemental answer, or for a stay of proceedings upon the judgment, which motions, it was claimed, would be addressed to the discretion of the court.

The opinion of the chief justice is certainly entitled to great consideration, and had the reversal, of the judgment upon the grounds urged by him been concurred in by Judge Jones, I should feel bound to follow his views, unless they are in opposition to other

p. 241

adjudications of this court announced at general term.

But the subsequent general term did not decide, when ordering a new trial, that the remedies open to-the defendant in the ejectment suit debarred him from bringing an affirmative action for equitable relief.

Judge Curtis, in delivering the opinion of the court, says: “ The tendency of the administration of justice is to relieve from forfeitures. Equity has always sought to mitigate the harshness and severity of the common law. The undenied statements on which this application is addressed to the court, the magnitude of the forfeiture attempted to be enforced, the importance of the interests at- stake, the relative characters, capacities and intentions of the parties and their respective claims to the equitable considerations of the court are all matters that are presented in this application.

“If, as it appears to be, this case was in part decided at the general term adversely to the plaintiff upon a point not raised or discussed there, a question as to the equities of his mode of applying to the court for relief from the forfeitures, then it appears to me that he should have an opportunity of presenting the additional evidence of his good faith and the equities of his position as urged by this application.

“When a suitor of slender capacity and advanced in years, seeks to be released from a most onerous forfeiture, upon such terms as to the court may seem equitable, and as it may impose, unless he has taken a position or performed acts depriving himself of all claim to equitable consideration, the court will be disposed to hear his application, and in all proper cases extend the relief prayed for upon suitable terms.

“ The plaintiff sought relief by bill in equity, instead of by motion to set up his equities by a supplemental answer, and as the question respecting the fairness and propriety of his course in this respect was not raised

p. 242

or discussed at the general term, but was presented in its decision as a prominent ground for debarring him of his relief, and as he now applies upon verified statements that are uncontradicted, alleging that, upon a new trial, he can show that he acted in good faith and fairness and upon the advice of able counsel, and upon what they believed to be the settled practice of this court, it is but just and in accordance with equity that he should have such an opportunity, by proofs and arguments, to present his position, and protect it from a new and undiscussed difficulty.”

Upon the new trial the plaintiff gave evidence upon the subject embraced in the affidavits which were before the general term, and which were the foundation for the order granting a new trial.

This evidence shows conclusively that in bringing this suit the plaintiff acted in good faith, and upon the advice of able lawyers, his counsel, who, after due consideration, recommended this mode of procedure as the safest remedy to secure his equitable rights, and best to determine the controversy between the parties, and in such .manner as that the claims of each might be fairly adjusted. That in giving such advice the counsel for the plaintiff, to a very considerable extent, relied upon the opinion of this court, announced in Garner v. Hannah, 6 Duer, 275 .

Before adverting to the case of G-arner v. Hannah, it may be proper at this point to consider the provisions of the Code affording equitable relief to a defendant. Section 150 of the Code provides that a defendant may set forth, by answer, as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.

Section 274 provides that the court “ may grant to the defendant any affirmative relief to which he may be entitled.’ ’

p. 243

The equitable claim of the plaintiff growing out of his payment of the taxes and assessments, arose after his answer had been interposed in the ejectment suit, and, if available, could only have been set up by way of supplemental answer, permission to file and serve which is not a matter of absolute right, but to be obtained by motion addressed to the discretion of the court, which is to determine its sufficiency as a defense (Morell v. Garelly, 16 Abb. Pr. 269 ).

Relief may also be granted on a motion for a stay of proceedings after judgment. But it may well be urged that the ancient jurisdiction of a court of equity to relieve against a technical forfeiture is not divested by the provisions of the Oode above referred to, or by a remedy afforded through motion after judgment, in a suit at law, addressed to the discretion of the court.

At common law, in an action of ejectment brought to recover the possession of land forfeited by the failure of a tenant to fulfill his covenants, relief might be had on motion after judgment (Atkins v. Chilson, 11 Metcalf, 112).

But that such remedy was accessible was no answer to a bill in chancery, filed for affirmative equitable relief against the forfeiture. Either remedy could be adopted.

In Tibbs v. Morris, 44 Barb. 138 , Grover, J., held that a party was not bound to set up his equitable defense by answer, but could bring his action ; and so jealous is the law for the conservation of the tenant’s equitable rights against the enforcement of sanctions and penalties for his exclusion, that it is provided by statute that within six months after execution, upon a judgment in an ejectment suit, he may commence an action for relief (3 Rev. Stat. 830, § 7, 5th ed.). An earlier application before trial to stay the same and avoid its expense should be regarded with favor.

If the payment of the taxes and assessments by the

p. 244

tenant after forfeiture was no defense, as is claimed, section 150 could not aid him, as it provides only for-setting forth of defenses, and it has been adjudged that the provisions of section 274 do not apply to cases of this character. Garner v. Hannah, 6 Duer, 275 , was decided at a general term of this court in 1857. I do not find that the authority of this case has been questioned. Chief Justice Barbour does not allude to it in his opinion. That was an action of ejectment. The plaintiff claimed to recover the possession of land under a clause of re-entry in the lease, on account of the tenant’s-failure to pay the taxes and assessments. Before bringing his action the landlord himself paid the liens left outstanding through the tenant’s default. After the commencement of the action the defendant tendered the taxes to the landlord, which were refused. On the trial the defendant moved for leave to amend his answer by setting up his offer and the refusal, or to file a supplemental answer, which was denied, and a verdict was-directed for the plaintiff, subject to the opinion of the court.

The court, in its opinion at general term, decided that if the facts had been set up in a supplemental answer they would have constituted no defense to the action. It was also decided that the defendant lost nothing for want of a supplemental answer, as the facts out of which his equity arose, had been proven on the trial, and their sufficiency as a defense could be passed upon as well as though they had been pleaded. In alluding to the affirmative relief which might be granted to a defendant under section 274, the court says it is limited to “such relief as may properly be given within the issues made by the pleadings, or according to the legal or equitable rights of the parties, as established by the evidence, not to that redress which is equally applicable after as before judgment, and may be obtained on motion or by action.” In

p. 245

Tendering the judgment, the court says: “We think the judge properly refused to allow the motion made at the trial. Judgment must be for the plaintiff, with liberty to the defendant to apply to the court for such relief against it as he may be entitled to, and without prejudice to his right to bring an aetion for such relief, if he deem the latter the proper course.”

This authority would seem clearly to justify the plaintiff-'s counsel in advising the commencement of this action, and sustains its propriety.

And it may not be improper to add that the defendant, instead of answering, might have demurred to the complaint, by which the appropriateness of this remedy could have been speedily determined on an issue of law, and that he consented to the injunction issued in this action, when, on the order to show cause, he might have successfully opposed its continuance, if improperly granted. This conduct on his part would ■seem to afford reasonable ground to believe that the defendant was not wholly unwilling that his action at law should be stayed, not to trust his rights and equities to the determination of this action.

From the most careful consideration which I have been able to give this subject, I am of opinion that this action is maintainable, and that it was fairly and in good faith brought, and that it is clearly the interest of both parties that their rights and claims, now and here, should be justly determined.

The case shows that the plaintiff is entitled to relief from the forfeitures under which he is resting, and to be reinstated in his rights under the lease, upon making proper compensation to the defendant.

Upon the trial the defendant stated, in substance, that he had never been, and was not now, unwilling that the plaintiff should be relieved, but insisted that his own equitable claims should be considered in determining the terms of the redress.

p. 246

But in asking, as he does, that the plaintiff shall be adjudged to pay him, in addition to the rent which had been paid him in currency from the date of the lease to November 1, 1867, the difference between gold and currency for that whole period, and should also pay the rent which has accrued since that time, and to the end of the term, in gold, the defendant demands more than a court of equity should or could properly grant.

The provision for a re-entry, and the rights of the defendant thereunder, are not independent. They exist in defendant’s favor, only to secure the performance of the obligations of the plaintiff, created by the covenants in the lease, and in the manner and by the means therein expressed.

The legal right of re-entry can not be used to exact from the plaintiff concessions in the way of payment of money, other than fairly arise from his original engagement, nor to place him under a new and more onerous contract.

I can conceive of no sound basis upon which the defendant can equitably claim that the plaintiff should advance to him, either for the past or future, the difference between currency and gold. Such claim has no-relation to the plaintiff’s covenants, and if yielded, would make a demand so great in amount, as that the remainder of the term would be of little profit to the plaintiff.

This being a proper case, the plaintiff should have redress in this action upon the usual terms. He has, since the forfeiture and the commencement of the ejectment suit, discharged all the liens by way of tax and assessment, except those for the years 1866,1867,1868, on the lot on Manhattan-alley, 1162. He had good, reason to suppose that in paying the amount charged upon lots 1196 and 1162 grouped, and appearing to be valued together, on Eeade-street, he had discharged

p. 247

the tax on the Manhattan-alley lot, and it may be that the taxes on lot 1162 aré in fact paid. But the evidence is not sufficient to satisfy me beyond doubt that this is so. In no event can the judgment in this action affect the question. It can neither take away or create a lien or obligation under that apparent assessment.

The liens, however, appear of record, and have been the foundation for proceedings to sell the land.

The plaintiff should remove, by payment or redemption, these taxes, and relieve the land from their effect. The hazard of their remaining should not rest upon the landlord. If their payment should afterwards appear to be illegal, he has his remedy for a recovery back of the money from the city.

The rents since the forfeiture, which, up to the time of the payment of the same into court, had been tendered to the defendant and refused, should be paid to the defendant, with legal interest, up to the time of the deposit. The plaintiff should also pay the costs, disbursements and allowances of the defendant in the ejectment-suit and in this action, and also the costs of the other defendant in the ejectment-suit.

I had some question as to whether the defendant should be allowed the costs of this action subsequent to the judgment entered upon the report of the referee, which made full compensation to the defendant for the legitimate consequences of the plaintiff’s default, and upon the grounds that subsequent resistance should have been at defendant’s expense, unless a more favorable result to him was obtained. But as that judgment was reversed by the general term, the defendant appears to have been legally justified in his appeal, and should recover these costs.

The findings to be filed herein will state the terms of the relief, and the extent thereof, and the manner and time in which to be enforced, with greater precision.

Cases cited

Tibbs v. Morris 44 Barb. 138 N.Y. Sup. Ct. 1865-05-02 p. 215, p. 243
Rector of Trinity Church v. Higgins 48 N. Y. 532 N.Y. Comm'n App. p. 236
Morel v. Garelly 16 Abb. Pr. 269 N.Y.C.P. p. 243